Polar Bear Listed As A Threatened Species

May 14: Secretary of the Interior Dirk Kempthorne announced that he was accepting the recommendation of U.S. Fish and Wildlife Service Director Dale Hall to list the polar bear as a threatened species under the Endangered Species Act (ESA). The listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten polar bear habitat. This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species.

On March 10, the Natural Resources Defense Council (NRDC), the Center for Biological Diversity and Greenpeace sued the Bush administration for missing the legal deadline to issue a final decision on whether to list the polar bear under the Endangered Species Act due to global warming [See WIMS 3/10/08]. On April 29, a Federal judge found the Bush administration guilty of violating ESA and ordered the administration to issue a final listing decision for the polar bear by May 15, 2008 [See WIMS 5/1/08].

In making the announcement, Kempthorne said, "I am also announcing that this listing decision will be accompanied by administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while limiting the unintended harm to the society and economy of the United States." Kempthorne further stated, "While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting. Any real solution requires action by all major economies for it to be effective. That is why I am taking administrative and regulatory action to make certain the ESA isn't abused to make global warming policies."

In January 2007, the Fish and Wildlife Service proposed listing the polar bear as threatened throughout its range based on receding sea ice. Last year, Arctic sea ice fell to the lowest level ever recorded by satellite, 39 percent below the long-term average from 1979 to 2000. The amount of sea ice loss in years 2002-2007 exceeded all previous record lows. USGS models project declines in September sea ice of more than 30 percent by the middle of the 21st century. Four of the 10 models project declines in September sea ice in excess of 80 percent by the mid -21st century. Seven of the 10 models show a 97 percent loss in September sea ice by the end of the 21st century. Based on actual observations of trends in sea ice over the past three decades, these models may actually understate the extent and change rate of projected sea ice loss.

In making the decision to list the polar bear as a threatened species, Kempthorne also announced he was using the authority provided in Section 4(d) of the ESA to develop a rule that states that if an activity is permissible under the stricter standards imposed by the marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way. The conservation measures provide that the production, interstate sale, and export of native handicrafts by Alaska natives may continue and that the subsistence harvest of polar bears is not affected.

Secretary Kempthorne reiterated President Bush's statement last month that the ESA was never intended to regulate global climate change. He said, "Listing the polar bear as threatened can reduce avoidable losses of polar bears. But it should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources. That would be a wholly inappropriate use of the ESA law. The ESA is not the right tool to set U.S. climate policy." Last month President Bush said, "The Clean Air Act, the Endangered Species Act and the National Environmental Policy Act were never meant to regulate global climate change." [See WIMS 4/28/08]

Kempthorne acknowledged Canada has not listed polar bears as threatened even though they have two-thirds of the world's population of the species. "Last week, I went to Canada and explored this issue. The Canadian law is different from U.S. law with respect to endangered species, both in its criteria for listing and administrative process for making listing determinations." While in Canada, Kempthorne signed a Memorandum of Understanding with his Canadian counterpart, John Baird, the minister of environment, for the conservation and management of polar bear populations shared by the U.S. and Canada.

Kempthorne indicated that to make sure the ESA is not misused to regulate global climate change, Kempthorne promised the following actions: The U.S. Fish and Wildlife Service is proposing the 4(d) rule mentioned above. Director Hall will issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project or government action. The Department will issue a Solicitor's Opinion further clarifying these points. The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.

Additionally, the Department will continue to: monitor polar bear populations and trends, study polar bear feeding ecology, work cooperatively with the Alaska Nanuuq Commission and the North Slope Borough for co-management of the polar bears in Alaska, provide technical assistance to the participants of the 1988 North Slope Borough Inuvialuit Game Council Agreement for the conservation of polar bears in the Southern Beaufort Sea region and monitor the effects of oil and gas operations in the Beaufort Sea region.

Earthjustice issued a release saying it welcomed protection for polar bears under ESA, but called on the government to put the brakes on oil and gas activities in polar bear habitat. The public interest law firm indicated, "The Bush administration announced that polar bears would be listed as 'threatened' under the Endangered Species Act. The administration, however, is employing a loophole called a 4(d) rule that appears calculated to limit protection for the ice bears and their shrinking sea-ice habitat in areas where oil and gas development is planned or proceeding. Essentially the administration has signaled that it will extend the bears no greater protection from oil and gas development than they previously had under the Marine Mammal Protection Act."

Access a lengthy release from Fish and Wildlife Service (click here). Access the Final Rule Determination of Threatened Status for the Polar Bear (click here). Access the Special Section 4(d) Interim Final Rule (click here). Access the DOI Polar Bear Conservation and Management website (click here). Access a release from Earthjustice (click here). Access a release from the Center for Biological Diversity one of the original petitioners for the ESA listing (click here). [*Wildlife]